Under a decree on the mortgage against S

Under Muslim law, a sale of his share by an heir in execution of a decree of his creditor amounts to a transfer and passes a good title to the transferee. In Wahidu-nissa v. Shubrattun, A, a Muslim, died leaving behind two sisters as his only heirs. Subsequently, one P, a creditor of A, obtained a decree against the sisters. Later on, one Q, a creditor of the sisters, also obtained a money decree against them.

In execution of Q’s decree the property was sold at court sale, and was purchased by one R. Then P fried proceedings to attach properties of A in the hands of R in execution of his decree. It was held that he could not do so, since R was a bona fide purchaser for value.

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In Bazayat Hussein v. Dooli Chand A, a Muslim, died leaving behind a widow, W, and a son, S, W’s dower debt was outstanding against A. S mortgaged his share in the estate to P without paying W’s dower debt. Subsequently, W obtained a money decree for her dower debt against S and got his share in the estate attached.

Then P obtained a decree on the mortgage against S for the sale of S’s share, and it was purchased by Q. Since the mortgage was made by S before W got S’s share attached in execution of the decree, it was held that Q was entitled to the property.

However, if an alienation is made by an heir during the pendency of a suit of a creditor of the deceased in which a charge is created on the estate, then the transferee will take the property subject to the charge.

In Mohamed Wazid v. Bazayat Hossein, A, a Muslim, died leaving behind three widows, X, Y and Z, and a son, S, X, Y and Z brought a suit against S, who was in possession of the estate of A, for administration and for the payment of their dower-debt.

The suit was decreed and a charge was created for the dower-debt on the estate and S was directed to render accounts of the income of the estate. The widows applied for the execution of the decree. While the execution proceedings were pending, S mortgaged his share to P. P sued S on mortgage and obtained a decree for the sale of S’s share in the estate.

Consequent to which S’s share was sold at a court sale and was purchased by Q. It was held on the suit of X, Y and Z that Q took the properties subject to the charge of X, Y and Z. The distinction between this case and Bazayat Hussain v. Dooli Chand is that in that in the latter case the mortgage was effected before, while in the former it was affected after the widows had filed the suit for the recovery of their dower-debt.

2. Alienation by an heir for payment of debt:

When one of the heirs of a deceased is in possession of the entire estate, he has no power of alienating out of the estate of the deceased more than his share, even for the discharge of the debts of the deceased.

If he does so, then such an alienation operates as a transfer of his interest in the estate, and is not binding on the other heirs and creditors of the deceased.

It is possible that an heir may mortgage his undivided share in some of the properties of the deceased. In such a case the mortgagee takes the property subject to the right of other heirs to enforce a partition.

When a partition is made on the suit of other heirs, and the mortgaged properties are allotted to the share of some heirs other than the mortgagor, then the heir takes the property free from the mortgage and the mortgagee can proceed only against the properties allotted to the mortgagor, unless fraud is pleaded.